Opinion
No. 05-18-00954-CV
08-04-2020
IN THE MATTER OF THE MARRIAGE OF LORIE RUTH BAKER AND GREGORY JOSEPH FINSTER
On Appeal from the 256th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-17-13669
MEMORANDUM OPINION
Before Justices Whitehill, Osborne, and Carlyle
Opinion by Justice Whitehill
Appellant, pro se, appeals from an agreed final judgment of divorce. We construe his brief as requesting a new trial, a change of venue, and sanctions. But despite our prior admonitions, his briefly wholly fails to comply with the appellate rules. Accordingly, we affirm.
A Texas litigant has the right to represent himself at trial and on appeal. TEX. R. CIV. P. 7; Ex parte Shaffer, 649 S.W.2d 300, 302 (Tex.1983) (orig. proceeding). The right of self-representation (or being what is commonly called a pro se litigant), carries with it the responsibility to adhere to our rules of evidence and procedure, including our appellate rules of procedure if the party chooses to represent himself at the appeal level. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.1978); Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied). Courts regularly caution pro se litigants that they will not be treated differently than a party who is represented by a licensed attorney. See Mansfield, 573 S.W.2d at 184-85; In re N.E.B., 251 S.W.3d 211, 212 (Tex. App.—Dallas 2008, no pet.).
In this case, we notified appellant that his brief was defective and cautioned that his "failure to file an amended brief that complies with the Texas Rules of Appellate Procedure within ten days will result in dismissal of the appeal without further notice." Appellant has filed two amended briefs that fail to remedy the defects.
Our appellate rules have specific requirements for briefing. TEX. R. APP. P. 38. These rules require appellants to state concisely the complaint they may have, provide understandable, succinct, and clear argument for why their complaint has merit in fact and in law, and cite and apply law that is applicable to the complaint being made along with record references that are appropriate. TEX. R. APP. P. 38.1(f), (h), and (i). Only when we are provided with proper briefing may we discharge our responsibility to review the appeal and make a decision that disposes of the appeal one way or the other. We are not responsible for identifying possible trial court error. See Canton-Carter v. Baylor College of Medicine, 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We are not responsible for searching the record for facts that may be favorable to a party's position. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283-84 (Tex.1994); Strange, 126 S.W.3d at 678. And we are not responsible for doing the legal research that might support a party's contentions. See Amrhein v. Bollinger, 593 S.W.3d 398, 401 (Tex. App.—Dallas 2019, pet. denied). Were we to do so, even for a pro se litigant untrained in law, we would be abandoning our role as judges and become an advocate for that party. See Sprowl v. Stiles, No. 05-18-01058-CV, 2019 WL 3543581, at *4 (Tex. App.—Dallas Aug. 5, 2019, no pet.) (mem. op.); see also Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).
To comply with rule 38.1(f), an appellant must articulate the issue we will be asked to decide. See TEX. R. APP. P. 38.1(f). From our perspective, we must be able to discern what question of law we will be answering. If an appellant is unable to or does not articulate the question to be answered, then his brief fails at that point. See Collins v. Walker, 341 S.W.3d 570, 575 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (stating that Rule 38.1(i) requirements are "not satisfied by merely uttering brief, conclusory statements unsupported by legal citations").
If the issue is identified, then rule 38.1(i) calls for the brief to guide us through the appellant's argument with clear and understandable statements of the contentions being made. If we must speculate or guess about what contentions are being made, then the brief fails. See Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied); Hogan v. Aspire Fin., Inc., No. 05-19-00385-CV, 2020 WL 3054509, at *2 (Tex. App.—Dallas June 8, 2020, no pet. h.) (mem. op.) (bare assertions of error without argument or authority present nothing for review).
Importantly, statements of fact must be supported by direct references to the record that are precise in locating the fact asserted. If record references are not made or are inaccurate, misstated, or misleading, the brief fails. And, just as importantly, existing legal authority applicable to the facts and the questions we are called on to answer must be accurately cited. See Hogan v. Aspire Financial, Inc., No. 05-19-00385-CV, 2020 WL 3054509, at *2 (Tex. App.—Dallas June 8, 2020, no pet. h.) (mem. op.) (brief failed to provide clear and concise arguments with appropriate citations to authority and record). References to legal authority that have nothing to do with the issue to be decided are contrary to the requirement of rule 38.1(i). Amrhein, 593 S.W.3d at 401. References to sweeping statements of general law are rarely appropriate. See In re A.E., 580 S.W.3d 211, 219 (Tex. App.—Tyler 2019, pet. denied). If we are not provided with existing legal authority that can be applied to the facts of the case, the brief fails. Amrhein, 593 S.W.3d at 401.
When deciding whether an appellant's brief is deficient, we do not adhere to any rigid rule about the form of a brief. Pro se litigants may not be versed in the form of briefing favored by seasoned appellate practitioners. We do, however, examine briefs for compliance with prescribed briefing rules, including specifically, in this case, rule 38.1. TEX. R. APP. P. 38.1. And we examine every brief closely. If we can conclude a brief complies with the Texas Rules of Appellate Procedure, we submit the appeal for review and decision on the merits. If we cannot, we may dismiss the appeal as we are authorized to do. TEX. R. APP. P. 42.3.
In this case, we conclude that appellant, although given ample opportunity, has failed to comply with our briefing rules. Appellant does not clearly and concisely identify the issue(s), the argument, or authority supporting such argument. He does not provide citations to the applicable portion(s) of the record. He offers general statements of law but does not apply the law to the facts or the issue(s). He makes general statements of fact without references to the record.
But the result does not change even if we very liberally construe appellant's argument to complain about the denial of his motion to recuse.
We review an order denying a motion to recuse for an abuse of discretion. TEX. R. CIV. P. 18a(j)(1)(A). A trial court abuses its discretion if it acts without reference to any guiding rules or principles—that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007).
Because appellant did not file a motion to transfer venue, there is no order denying such a motion that he can appeal or we can address.
A motion to recuse must be verified, must assert one or more of the grounds listed in Civil Procedure Rule 18b, must not be based solely on the judge's rulings in the case, and must state facts, with detail and particularity, that are within the affiant's personal knowledge (although facts may be stated on information and belief if the basis for that belief is specifically stated), that would be admissible in evidence, and that, if proven, would be sufficient to justify recusal. TEX. R. CIV. P. 18a(a)(1)-(4). If a motion to recuse does not comply with the requirements of Rule of Civil Procedure 18a, it may be denied without an oral hearing but must state the nature of the noncompliance. TEX. R. CIV. P. 18a(g)(3)(A).
Here, the motion was denied because it did not comply with rule 18a. See TEX. R. CIV. P 18a(a)1,4. Specifically, the motion was not sworn before a notary and did not state facts that would be admissible in evidence. See id. Under these circumstances, we cannot conclude the trial court abused its discretion by denying the motion. See In re G.S., No. 02-19-00390-CV, 2020 WL 1294925, at *5 (Tex. App.—Fort Worth Mar. 19, 2020, pet. denied) (mem. op.) (no abuse of discretion when judge follows rules).
We thus affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 180954F.P05
JUDGMENT
IN THE MATTER OF THE MARRIAGE OF LORIE RUTH BAKER AND GREGORY JOSEPH FINSTER, On Appeal from the 256th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-17-13669.
Opinion delivered by Justice Whitehill. Justices Osborne and Carlyle participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee recover her costs of this appeal from appellant IN THE MATTER OF THE MARRIAGE OF LORIE RUTH BAKER AND GREGORY JOSEPH FINSTER. Judgment entered August 4, 2020.